The High Court of Singapore has rejected a constitutional challenge to section 377A of the Singapore Penal Code, which criminalizes ‘gross indecency’ between men, in Lim & Chee v Attorney-General.

The High Court’s judgment, issued in April, is a blow for LGBT rights activists in Singapore who might have hoped that the court would follow the lead of courts across Asia which have read down so-called “sodomy laws” on constitutional grounds in recent years, including the Court of Appeal in Hong Kong (2006), the Supreme Court of Nepal (2007), and the Delhi High Court in India (2009).

This post sets out the background to the litigation and the substance of the High Court’s decision, before considering what the future holds for struggles over section 377A in Singapore.

Background to the litigation

Singapore formed part of the British-controlled Straits Settlements until independence was granted to the Federation of Malaya (later Malaysia) in 1957. As such, it inherited the common law tradition from the UK, together with a penal code modelled on Macauley’s 1861 Indian Penal Code. The 1871 Straits Settlements Penal Code was retained by Malaysia on independence, and then again by the newly formed Republic of Singapore after it was ejected from Malaysia in 1965.

Among the original provisions in the Code was section 377, which criminalized “carnal intercourse against the order of nature”, extending to all forms of non-procreative (anal, oral) sex, whether heterosexual or homosexual, as well as sex with animals, and attracting a maximum term of life imprisonment. Section 377 was modelled on the English common law offence of buggery, which was imported through colonial penal codes across much of the British Empire during the Victorian era.

The origins of section 377A, on the other hand, can be traced back to the infamous “Labouchere Amendment”, section 11 of the UK Criminal Law Amendment Act 1885, which was introduced to the Straits Settlements by amendment to the Penal Code in 1938. While section 377 was focused broadly on patrolling all forms of non-procreative sexual activity, section 377A (like the Labouchere Amendment) reflected a specific concern with the perceived social problem of male homosexuality.

While the UK slowly decriminalized gay sex and equalized the age of consent in the years following the 1957 Wolfenden Report, Singapore (together with India and most other Commonwealth nations) did not follow suit. It was only as late as 2007 that the Parliament of Singapore considered the case for repealing sections 377 and 377A, as part of a broader review of the Singaporean Penal Code.

Following that review however, Parliament decided that only section 377 should be repealed. It did so on the basis that “Singaporeans by and large do not find oral and anal sex between two consenting male and female [persons] in private offensive and unacceptable”. In other words, the section was removed to protect the sex lives of heterosexual Singaporeans while, at the same time, Parliament took the view that section 377A – prohibiting male homosexuality – should be retained.

Nevertheless, pressure to repeal section 377A had been growing within Singapore by the time of Parliament’s penal code review, especially among LGBT communities in the country, who had been buoyed by the success of other challenges to domestic sodomy laws across Asia and worldwide.

There had been vocal opposition to section 377A throughout the course of the review, both domestically and internationally. Sir Ian McKellan founder of Stonewall, the UK LGB charity, condemned sections 377 and 377A in a visit to Singapore in July 2007; the website “Repeal377A” (no longer active) attracted thousands of signatures; a YouTube video of actors was released supporting the campaign against section 377A; and a Parliamentary petition against the provision, only the second such petition in Singapore’s history, was sponsored by a Nominated Member of Parliament.

However, there was also strident opposition to repeal of section 377A from many who argued that the provision was an appropriate reflection of the moral conservatism of Singaporean society, and that calls for repeal were the product of the unwelcome influence of Western culture in the country.

The litigation itself

Before long, the challenge to section 377A would shift from Parliament to the Singapore courts.

In March 2010, two men were arrested and charged under 377A for performing oral sex in a public toilet at the Mustafa Centre, a shopping complex in Singapore. On 24 September, one of the charged men, Tan Eng Hong, brought an application before the High Court challenging the constitutionality of section 377A under the Constitution of Singapore.

Shortly thereafter, the police decided to drop the charge under section 377A and substituted it with a charge under section 294(a) for the commission of an obscene act in a public place. Tan and the other man both pleaded guilty to the section 294(a) and were each fined $3000.

A tangled web of litigation then followed. Tan’s application was struck out peremptorily at a hearing before the assistant registrar, whose decision was appealed by Tan to the High Court. The presiding judge then upheld the registrar’s decision, on the basis that although Tan had locus standi, the application disclosed no real controversy to be adjudicated. She reached her decision primarily on the basis that because the section 377A charge had been dropped and Tan had pleaded guilty and been convicted under section 294(a) there was nothing at stake for him in pursuing the application.

This decision was again appealed, this time to the Court of Appeal, which, in a lengthy judgment (taking over a year to complete), overturned the High Court’s decision. It concluded instead that Tan faced a “a real and credible risk” of future prosecution under section 377A, and that this meant he had an arguable case under the Constitution of Singapore, especially Article 12, which provides that “all persons are equal before the law and entitled to the equal protection of the law.” As such, there was indeed an issue of real controversy, which should be remitted to the High Court to adjudicate.

However, before lawyers for Tan could make a fresh application to the High Court to hear the merits of their challenge to section 377A, a separate application had already been filed before the Court by two new plaintiffs, Gary Lim and Kenneth Chee, a gay couple in a 15 year relationship, who also sought to test the constitutionality of the provision under Article 12 of the Singaporean Constitution (and who were piggy-backing on the success of the earlier challenge by Tan before the Court of Appeal to the pre-emptory striking out of his application by the High Court on procedural grounds).

Lim and Chee’s hearing took place on 14 February 2013, just weeks before Tan’s on 6 March, and it was this application, rather than Tan’s, that formed the basis for the decision of the High Court in April this year that affirmed the constitutionality of section 377A. As of today, the High Court’s judgment in Tan Eng Hong v Attorney-General has still not been handed down.

The decision in Lim & Chee v Attorney-General

Quentin Loh J’s sixty-page judgment is an extremely complex and wide-ranging analysis of Article 12 of the Singapore Constitution. What it reveals quite clearly, however, are the narrow limits within which the equality guarantee under Article 12 has been contained by Singaporean jurisprudence.

There are currently two tests by which Singapore’s courts evaluate breaches of Article 12.

The first is the “reasonable classification” test, which appraises the reasonableness of a particular discriminatory classification employed by legislation. Put simply, this test asks whether: (1) “the classification prescribed by the legislation is founded on an intelligible differentia” and (2) “the differentia bears a rational relation to the object sought to be achieved by that legislation” (para 46).

An “intelligible differentia” is any differentia that can be meaningfully understood (para 47), while the notion of a “rational relation” requires only that “the differentia underlying the classification prescribed by a piece of legislation is broadly effective to achieve the object of that legislation” (para 97). Clearly, the “reasonable classification” test is therefore an extremely light-touch form of constitutional review, because it takes for granted the purpose of particular legislation, and simply asks whether the legislation achieves that purpose – however unacceptable the purpose might be.

This limited scrutiny reflects the Singapore constitution’s respect for Parliamentary sovereignty. As Quentin Loh J considered in his judgment, so long as the differentia is broadly proportionate, “it is not the court’s function to displace Parliament’s decision in prescribing that classification” (para 97).

Under the “reasonable classification” test, at least, it was hardly surprising that section 377A would be judged constitutional by the High Court under Article 12. As Quentin Loh J notes, after examining political and legal documentation at the time of section 377A’s enactment in 1938, as well as the debates over reform of section 377A in 2007, the original purpose behind section 377A was quite simply to deter sexual acts between males on moral and social grounds. On this basis, criminalization was a wholly rational (in other words, broadly proportionate) means to achieve that particular end.

The High Court then proceeded to grapple, however, with a second further test for constitutionality under Article 12, which seemed to offer much more scope in principle for challenging section 377A.

While Quentin Loh J acknowledged that the “reasonable classification” test takes for granted the purpose behind particular discriminatory legislation, he suggested – drawing from the US approach to review – that in certain limited circumstances legislation might also be challenged using Article 12 where the purpose to be achieved was found to be inherently bad or fundamentally “illegitimate”.

Echoing the notion of strict scrutiny in US constitutional jurisprudence, Quentin Loh J noted that this might be the case, in particular, if a differentia “appears to be discriminatorily based on factors like race or religion and concerns the fundamental liberties set out … in the Constitution” (para 113). However, the judge did not then proceed to recognise sexual orientation as a similar discriminatory factor requiring close scrutiny, and indeed went on to conclude that the purpose behind section 377A was not in fact fundamentally illegitimate on the basis of this second, substantive equality test.

Quentin Loh J considered and dismissed several arguments made by the plaintiffs on the basis that the purpose behind section 377A was inherently bad or fundamentally illegitimate.

It was argued by the plaintiffs that section 377A was unjustified as it only criminalized male but not female same-sex sexual behaviour; however, the judge concluded that the long history of prohibitions of male homosexuality alone in the common law was sufficient justification for this distinction between men and women – “the common law tradition has never criminalised female homosexual conduct” (para 126); moreover, the concerns about procreation and lineage raised by homosexuality were particularly important in relation to men in Singaporean society, especially for the majority Chinese population, because the “tradition of carrying on the family name is focused on males rather than females, since the usual way to carry on the family name is through the birth of a male descendent” (para 128).

It was suggested that the term “gross indecency” was too vague and therefore operated arbitrarily in a way which made its purpose illegitimate; but this was rejected by the Court as an inevitable characteristic of legal concepts and not fatal to its constitutionality (para 132).

It was pointed out that there was a world-wide movement to decriminalise homosexual activity, but Quentin Loh J simply concluded that “Singapore is an independent nation with its own unique history, geography, society and economy. What is adopted in other parts of the world may not be suitable for adoption in Singapore” (para 133).

It was also noted by the plaintiffs that the Singaporean government had announced that section 377A would not be actively prosecuted and this undermined the need for the provision; however, the judge held that this made little difference to the section’s purpose – the section could “still fulfil its purpose of signalling the public’s disapprobation of male homosexual conduct notwithstanding the policy of non-enforcement” (para 134).

Finally, it was argued that repeal of section 377 meant retention of section 377A was unjustifiable; but again the judge returned to the existence of meaningful Parliamentary debates in 2007 over whether to retain section 377A as evidence that there was still some legitimate basis for continuing to prohibit male homosexuality in Singapore (para 136-8).

On this basis, Quentin Loh J felt able to conclude that “the purpose of s377A is not a purpose which is so patently wrong as to render it an illegitimate purpose upon which to base a classification prescribed by law” (para 146).

Discussion

Why did the constitutional challenge in Lim & Chee fail?

One notable characteristic of the challenge in Lim & Chee was the absence of arguments grounded in notions of privacy, and specifically sexual autonomy. Such arguments have been pivotal to successful challenges to sodomy laws in other jurisdictions, including Lawrence v Texas in the US, the UN HRC opinion in Toonen v Australia, and the European Court of Human Rights in Dudgeon v UK.

By avoiding equality-based challenges to sodomy laws in favour of a claim to be ‘left alone’ in the private sphere of the bedroom, privacy arguments have helped to assuage concerns that equality grounds might well open up far-reaching constitutional protections against non-discrimination on grounds of sexual orientation, including relationship recognition and even same-sex marriage.

However, the problem faced by Lim and Chee was that the Singapore constitution, while recognising a right to liberty under Article 9, has consistently limited it “only to the personal liberty of the person against unlawful incarceration or detention”. While the plaintiffs in Tan Eng Hong tried to argue before the Court of Appeal that this right should be extended to include “privacy, human dignity, individual autonomy and the human need for an intimate personal sphere”, this was rejected outright by the Court as extending the right to liberty too far beyond its legitimate scope (para 120).

The second issue raised by Lim & Chee was the high importance placed by the presiding judge on the sovereignty of Parliament when applying Article 12. The common thread running through the judgment is the need to respect the legislature’s view of the legitimacy of section 377A reflected in its decision in 2007 to retain it in the Singapore Penal Code while repealing section 377 (and in turn the majoritarian views on male homosexuality that the legislature largely represents).

This constitutional dynamic in relation to fundamental rights, especially evident in Singapore’s legal system, appears to have been a far greater stumbling block in Lim & Chee than for other domestic courts that have repealed sodomy laws on constitutional or human rights grounds in recent years.

More broadly, the judgment in Lim & Chee also indicates the possible limits of what Sonia Katyal has described recently as the “constitutional diaspora” of global LGBT rights discourse, by which the (Western-inspired) language of privacy, equality and non-discrimination is diffusing ever more rapidly around the world through the “borrowing” of transnational and domestic jurisprudence.

The High Court’s decision is in this way significant for its consistent denial of Singapore’s relationship with broader cultural shifts outside its borders, and its evocation of a heteronormative nationalism, similar to the American exceptionalism that underpinned the decision of the US Supreme Court in Bowers v Hardwick, even as the Supreme Court has looked more recently to the global community and its growing shared rejection of sodomy laws in its ground-breaking decision in Lawrence v Texas.

Of course, other countries have adopted a similar oppositional stance, exemplified by Uganda’s Anti-Homosexuality Bill, and recent homophobic legislation in Russia. What makes Lim & Chee so startling, however, is the tension it suggests between Singapore’s resistance to the on-going cultural globalization of sexuality, and its hyper-globalization in other spheres.

Since independence the country has expanded economically at a phenomenal rate, and is now the fourth largest financial centre in the world, with one of the five busiest ports, and the third highest per capita income among all nations.

The lesson, it seems, is that this Western level of economic development may be no guarantee of sexual liberalization and, indeed, may provide the very confidence needed to oppose those cultural forces in favour of retaining domestic sodomy laws.

Where now for Singapore and section 377A?

However, all is certainly not lost.

The High Court has yet to issue its judgment in the second Tan Eng Hong case and it has been noted on the blogs that it may be deliberately delaying its second judgment on that case, knowing that the outcome of Lim & Chee will now almost certainly be appealed by the plaintiffs, and that it would be sensible to wait for the decision of the Court of Appeal before making its decision on Tan Eng Hong.

More importantly, the Court of Appeal of Singapore, intriguingly, has shown signs that it may be more amenable to finding that section 377A breaches Article 12 of the Singapore Constitution than Quentin Loh J in the High Court.

The Court of Appeal was emphatic in its earlier decision on Tan Eng Hong v A-G that the case was limited solely to the procedural question of whether there was a case to answer, and not on the merits of the application itself. Yet in the final few paragraphs of its judgment, it adds: “without going into the merits of the Application, we want to acknowledge that in so far as s377A in its current form extends to private consensual sexual conduct between males, this provision affects the lives of a not insignificant portion of our community in a very real and intimate way” (para 99).

Not only that, but the Court of Appeal also went on to comment in this paragraph, when it was entirely unnecessary to do so, that “one unwanted effect of s377A is that it may also make criminals out of victims.” It volunteered three examples to illustrate this point.

A man who suffers domestic abuse at the hands of his male partner may be reluctant to report it to the police as police investigations may reveal that he (ie the victim of domestic abuse) is guilty of an offence under s377A.

If a man who has been sexually assaulted by another man reports this to the police, he may lay himself open to a s377A charge as s377A is silent on consent. While a charge in such a scenario may be unlikely, the fear of being charged may be sufficient to deter some victims from coming forward.

The Court of Appeal’s merits-based objections to section 377A indicate not only an infinitely more sensitive appraisal of the reality of LGBT lives in Singapore (and indeed elsewhere) than Quentin Loh J, but also a (deliberate?) pointer towards the Court’s own view that the section would be judged unconstitutional if appraised by the Court itself – an appraisal that may be inevitable in the case of Lim & Chee.

One can never be sure about these things, especially in a country in which judges remain so deferential to parliamentary law makers, but the tone of these last few paragraphs of the Court of Appeal’s Tan Eng Hong judgment should leave us with some hope that section 377A may well be subject to much more progressive scrutiny once Lim & Chee reaches the highest appellate court in Singapore.